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TMI Blog2016 (12) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... r-in-original No. 12/Commr./Denovo/CE/Kol-VII/Adjn./07-08 dated-31.1.2008 passed by the Commissioner of Central Excise, Kolkatata-VII. 2. Commissioner of Central Excise in the impugned order interalia confirms the demands of Central excise duty of ₹ 38,85,232.44, ₹ 50,63,520.64 and ₹ 6,203.00 alongwith the interest, the penalty of ₹ 32.00 Lakhs has also been imposed on the assessee-appellant. 3. The appellant has been represented by Shri B.N. Chattopadhyay, Consultant and and the Department has been represented by Shri K. Choudhuri, Supdt. (A.R.). 4. The Ld. advocate based on appeal memorandum and the written submissions inter alia submits as under: i) The dispute is mainly of undervaluation.The appellant was availing the benefit of small scale exemption granted under Notification No.75/86 dated .3.86 as amended. The appellant during the material time had been selling goods directly to their customers as well as transferring goods to their depots. From the depots, the goods were sold to the retailers. The appellant had got ex-factory wholesale price and price list was also there. The dispute is that the sale price from the depots was shown much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against which the appellant is now in appeal before the. In the last round of appeal before the Tribunal, the appellant requested for cross examination which was allowed by the Tribunal. In respect of cross examination the Commissioner in the impugned order mentions that the communication was sent to respective dealers/traders for fixing cross examination on 8/08/2007 before Commissioner of Central Excise, Kolkata-VII. In case of certain dealers/traders i.e. chandraKishore Jhawar and Shri Nazrul Islam, the communication sent by the Commissioner came back with the postal remark diseased and refused . In case of the following three, they did not appear for cross-examination on 8/8/2007. (i) Sri Khagen Sarkar (ii) Md. Sirajuddin (iii) Sri Arabinda Guhathakurata Commissioner further mentions in the impugned order that following four persons appeared before him on 8/8/2007. (i) Md. Parvez (ii) Sri Suresh Pandey (iii Sri Tapan Paul (iv) Sri Arabinda Guhathakurata 7.1 Commissioner in the impugned order also mentions that Shri B.N. Chattopadhyay, (BNC) Sri M.L. Chatterjee (MLC) and Shri R. Chowdhuri (RC) appeared on behalf of the assessee before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld also like to bring the happenings of the cross examination done by Sri B. N. Chattopadhyay (Consultant) and Sri M.I. Chatterjee, Advocate of M/s Emkay Investments (P) Ltd. on 30.5.2002 before the then Commissioner of Central Excise. I find that following four persons were cross examined; a) Sri Sreeram Bansal- Partner: M/s Sreeram Plywood. b) Sri Abanindranath Mandal. Partner: Sree Durga Trading Co. c) Sri Nirmal Das. Prop: M/s Das Company. d) Sri Harendra Nath Ghosh Prop: M/s Ghosh Plywood. On the above said date, statements were recorded in question, answer from duly signed by the person cross examined and Sri B.N. Chattopadhyay, Sri M. L. Chatterjee and the Commissioner of Central Excise as a token of proof of cross examination. 7.2 From the contents of the impugned order, we are of the considered view that there is no denial of cross examination to the assessee appellant and the contention of the assessee that the cross examination was not complete is having no sufficient force and cannot therefore, be accepted. 8. The demand confirmed against the assessee by the impugned order is mainly based on documents seized and the statements recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Plywood reaffirmed his statement given earlier on 14.3.91 (discussed at para 4.2.8). I have before me judgment pronounced by Hon ble Supreme Court in the case of :- KTMS Mohammed- Vs- UOI[AIR 1992 S. C. 1831=(1992)3 Sec 178=197 ITR 196=192 AIR SCW 2062] Wherein it had been held that ...statement should be retracted as early as possible. Retracted statement does not become a nullity Following the ratio of the above judgment retraction after a gap of 11 yrs (date of statement 11.3.91 date of retraction 30.5.2002) can not be held as earliest opportunity and accordingly I am of the opinion that such retractions are nothing but highly belated after thoughts and I therefore hold that the statement are true/voluntary and are admissible as evidence in terms of Sec 36A of the CEA 44. Further in the case of:- IIlias Vs CC-1969-2SCR 613-1983 (13) ELT 1427 (SC-5 Member Constitutional Bench) The Hon ble apex court had held that statement made before Customs/Excise Officers can be admitted 'as evidence'. In view of the above judgment of the Apex Court, which has become law of the land, I have no hesitation to further hold that statements given by differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 115 and 116 both dated 29.12.1990. On close examination of the above said pages it is observed that the above quantity of plywood were made on the above two dates giving reference of the same two GPI(s) (mentioned above). The said 613 pieces (308+305=613 pieces) of plywood so received on 29.12.1990 were added to the opening balance of 29.12.1990 and sale undertaken on 29.12.1990 were found deducted from the said receipts. Similarly the said 613 pieces of plywood received second time under the same set of GPIs as mentioned above on 31.12.1990 were added in the closing balance of 29.12.1990 (i.e. O.B. of 31.12.1990). The quantum of sale effected on 03.01.1991 was deducted from the opening balance of 31.12.1990. From the above entries of 613 pieces made twice against the same GPI (s) proves that these 613 pieces of plywood were surreptitiously manufactured and cleared, valued altogether ₹ 51,440.44 involving Central Excise duty of ₹ 16,203.74 with clear intention to evade payment of duty. I am therefore convinced that the said assesse has contravened the provisions of Rule 49, 173C, 173F(1), 173G, 52A, 226 of the Central Excise Rules, 1944 (erstwhile) and the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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